{"id":60496,"date":"2009-08-28T00:00:00","date_gmt":"2009-08-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/o-balan-vs-state-of-kerala-on-28-august-2009"},"modified":"2014-07-03T09:29:42","modified_gmt":"2014-07-03T03:59:42","slug":"o-balan-vs-state-of-kerala-on-28-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/o-balan-vs-state-of-kerala-on-28-august-2009","title":{"rendered":"O.Balan vs State Of Kerala on 28 August, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
O.Balan vs State Of Kerala on 28 August, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 9662 of 2008(A)\n\n\n1. O.BALAN, ASSISTANT TEACHER (RETIRED),\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA, REPRESENTED BY\n                       ...       Respondent\n\n2. DIRECTOR OF PUBLIC INSTRUCTIONS,\n\n3. DISTRICT EDUCATIONAL OFFICER, VADAKARA.\n\n4. ASSISTANT EDUCATIONAL OFFICER, THODANNUR\n\n5. K.P.RAVEENDRAN, M.C.M.U.P.SCHOOL,\n\n6. THE MANAGER, M.C.M.U.P.SCHOOL,\n\n                For Petitioner  :SRI.M.VIJAYAKUMAR\n\n                For Respondent  :SRI.R.K.MURALEEDHARAN\n\nThe Hon'ble MR. Justice S.SIRI JAGAN\n\n Dated :28\/08\/2009\n\n O R D E R\n                            S. Siri Jagan, J.\n               =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=\n                W. P (C) Nos. 9662 & 11407 of 2008\n               =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=\n                 Dated this, the 28th August, 2009.\n\n                           J U D G M E N T\n<\/pre>\n
      The issue that crops up for consideration in these two writ<\/p>\n
petitions is as to whether the Mayyannur Central Mopla Upper<\/p>\n
Primary School is a minority institution so that      its manager can<\/p>\n
appoint a Headmaster of his choice for the school, overlooking<\/p>\n
seniority of the petitioners in the two writ petitions. The facts from<\/p>\n
which the above issue arises may be summarised as follows:<\/p>\n
      2. Sri. O. Balan, the petitioner in W.P(C) No. 9662\/2008, was<\/p>\n
working in the school with effect from 6-8-1973.             Sri. K.P.<\/p>\n
Raveendran, the 5th respondent in that writ petition entered service<\/p>\n
of the school on 1-6-1982. Therefore, Sri. Raveendran was junior to<\/p>\n
Sri. Balan. The post of Headmaster of the school fell vacant on 1-6-<\/p>\n
2004. Apprehending that overlooking his seniority, the manager is<\/p>\n
likely to appoint the junior teacher as Headmaster, Sri. Balan<\/p>\n
submitted Ext. P1 representation dated 7-6-2004 before the Assistant<\/p>\n
Educational officer. By Ext. P2 communication dated 31-7-2007, Sri.<\/p>\n
Balan was informed by the AEO that the manager had appointed Sri.<\/p>\n
Raveendran as Headmaster from 1-6-2004 and approval for the same<\/p>\n
was declined by order dated 11-6-2004, in which order it was also<\/p>\n
stated that Sri. Balan is the person entitled to be appointed as the<\/p>\n
Headmaster of the school. Challenging the order of the AEO, declining<\/p>\n
approval for the appointment of Sri. Raveendran as Headmaster of the<\/p>\n
school, the manager filed an appeal before the DEO claiming that the<\/p>\n
school is a minority institution and therefore the manager is entitled<\/p>\n
to appoint a qualified teacher of his choice as the Headmaster of the<\/p>\n
school. By Ext. P3 order dated 6-10-2004, the DEO rejected the<\/p>\n
appeal stating that the jurisdiction to decide whether the school is a<\/p>\n
minority school vests with the Government and since presently the<\/p>\n
school is under a management whose minority status has not been<\/p>\n
W.P.C. Nos.9662 & 11407\/08       -: 2 :-<\/span><\/p>\n
recognised,    the   appointment of Sri. Raveendran as Headmaster<\/p>\n
cannot be approved. Since the manager did not appoint Sri. Balan as<\/p>\n
Headmaster, despite direction by the AEO, Sri. Balan filed W.P(C)<\/p>\n
No. 31075\/2004 for a direction to the manager to comply with the<\/p>\n
order of the AEO. In that writ petition the manager submitted that he<\/p>\n
has challenged the order of the DEO in a revision petition and the<\/p>\n
Government had, by Ext. P5 order dated         10-12-2004, stayed the<\/p>\n
orders of the AEO and the DEO. The manager also filed Ext. P4<\/p>\n
petition before the Government seeking a declaration of the minority<\/p>\n
status of the school. Sri. Balan again filed W.P(C) No. 36837\/2004<\/p>\n
and against the judgment in that writ petition, W.A.No. 587\/2005. By<\/p>\n
Ext. P6 judgment, this Court disposed of that writ appeal, directing<\/p>\n
the Government to decide the status of the school. In that judgment,<\/p>\n
it was held that if the Government decides that the school is not a<\/p>\n
minority school, Sri. Balan would be entitled to get all service benefits<\/p>\n
including pay and allowances from 1-6-2004 as Headmaster, which is<\/p>\n
to be borne by the institution. Before the Government, both sides<\/p>\n
adduced evidence and Sri. Mathew John, Under Secretary to the<\/p>\n
Government , who heard the parties, prepared Ext. P8 hearing note in<\/p>\n
which it was recorded that the school cannot be granted minority<\/p>\n
status under Article 30(1) of the Constitution of India and the request<\/p>\n
of the manager to declare the school as minority school is rejected.<\/p>\n
But, by Ext. P9 order, Sri. P.J. Thomas, the Principal Secretary to the<\/p>\n
Government, after observing that ‘it is true that it (the school) was<\/p>\n
established by a non-muslim and it was purchased by the Muslim<\/p>\n
Vidyabhyasa Sanghom, the present management of the school in<\/p>\n
1985, from the founder manager’, held that the school was established<\/p>\n
and administered for the benefit of a minority community and the<\/p>\n
school is eligible for minority status. In the meanwhile, Sri. Balan<\/p>\n
W.P.C. Nos.9662 & 11407\/08       -: 3 :-<\/span><\/p>\n
retired from service. However, in view of the observation in Ext. P6<\/p>\n
judgment, he challenged Ext. P9 order by filing W.P(C) No.<\/p>\n
22337\/2005.     Sri. K. Bhaskaran,      the petitioner in W.P(C) No.<\/p>\n
11407\/2008, another teacher of the school, who was also senior to Sri.<\/p>\n
Raveendran, aspiring for promotion as Headmaster, also challenged<\/p>\n
the very same order, by filing W.P(C) No. 22857\/2005. Both the writ<\/p>\n
petitions were heard together and disposed of by Ext. P11 judgment,<\/p>\n
finding that the order of the Government cannot be sustained in the<\/p>\n
face of the finding that the school was established by a non-muslim<\/p>\n
and yet the Government proceeded to confer minority status on the<\/p>\n
school. Accordingly, Ext. P9 order was quashed and the Government<\/p>\n
was directed to re-consider the matter after hearing the two<\/p>\n
petitioners, the manager and Sri. Reaveendran.          Thereafter, the<\/p>\n
Government re-considered the matter, after hearing the parties, and<\/p>\n
by Ext. P14 order, again decided that the school is eligible for<\/p>\n
minority status. The very same order is produced by Sri. Bhaskaran<\/p>\n
in W.P(C) No. 11407\/2008. The petitioners are challenging that order<\/p>\n
in these two writ petitions and seeking successive promotion as<\/p>\n
Headmaster, one after the other, based on seniority, since Sri.<\/p>\n
Raveendran is junior to them.\n<\/p>\n
      3.   The manager has filed a counter affidavit in W.P(C) No.<\/p>\n
9662\/2008, seeking to refute the contentions of both petitioners.<\/p>\n
According to him, both petitioners being not the next person entitled<\/p>\n
for promotion as Headmaster, the impugned order does not affect<\/p>\n
their legal right and therefore the writ petitions are not maintainable.<\/p>\n
The contention is that there is another graduate teacher who has a<\/p>\n
better claim for promotion as Headmistress.             Regarding Sri.<\/p>\n
Bhaskaran, the manager would contend that since he was punished<\/p>\n
for misconduct involving misappropriation of public funds, he cannot<\/p>\n
W.P.C. Nos.9662 & 11407\/08       -: 4 :-<\/span><\/p>\n
be promoted as Headmaster of the school, for which contention he<\/p>\n
relies on the principle laid down in Ext. R6(c) judgment of this Court<\/p>\n
in O.P.No. 28868\/2002. He would further contend that the school is a<\/p>\n
minority school established by muslims for the benefit of the Muslim<\/p>\n
community.     According to him, the school was established by one<\/p>\n
Ammed on 30-8-1943 and its original name was Mayyannur Aided<\/p>\n
Moppila School.      In 1949, its name was changed to Mayyannur<\/p>\n
Moppila School and in 1951, the name was again changed to<\/p>\n
Mayyannur Central Moppila School.         Since, it was upgraded as<\/p>\n
U.P.School, it was known as Mayyannur Central Moppila Upper<\/p>\n
Primary School. According to the manager, even in 1944, Sri. Ammad<\/p>\n
was the manager, which is evident from the service book of one<\/p>\n
Moidu, copy of which he has produced as Ext. R6(a). He would<\/p>\n
contend that Sri. Krishnan became the teacher-cum-manager of the<\/p>\n
school from 6-4-1949 and thereafter Mathu became the manager on<\/p>\n
1-4-1958.    He relies on Ext. R6(c) service book of the said Sri.<\/p>\n
Krishnan in support of this averment. According to him, the school<\/p>\n
was established for educating Muslim girls of the area and for 12<\/p>\n
years only muslims were admitted in the school. Later also, majority<\/p>\n
of the students of the school were muslims. He contends that during<\/p>\n
the pre-independence period, the schools in Malabar were divided as<\/p>\n
Muslim Range Schools and Hindu Range Schools and separate Range<\/p>\n
inspectors supervised the schools. He points out that as per Ext.<\/p>\n
R6(g) visit book of the school, a Muslim Range Deputy Inspector<\/p>\n
visited the school on 3-11-1943 and expressed satisfaction that the<\/p>\n
school is    satisfactorily educating muslim girls.   The school is<\/p>\n
following Muslim calendar. Although later the school came into the<\/p>\n
hands of one Krishnan Master and his wife Mathu, the same again<\/p>\n
came under the management of the Villiappally Muslim Vidyabhyasa<\/p>\n
W.P.C. Nos.9662 & 11407\/08         -: 5 :-<\/span><\/p>\n
Sangham as per sale deed no. 991\/1985 of Villiappilly Sub Registrar’s<\/p>\n
office. The manager submits that from Ext. R4(i) sale deed it is clear<\/p>\n
that even during the period when Krishnan Master was the manager<\/p>\n
of the school, the property in which the school is situated belonged to<\/p>\n
Ammed and Ammed transferred the property while Mathu was the<\/p>\n
manager. The contention is that the property of the school at the time<\/p>\n
of establishment of the school belonged to one Java Ammed Haji, who<\/p>\n
transferred the same to Ammad in 1123 ME (1946 AD) as is clear<\/p>\n
from Ext. R6(j). Therefore, according to the manager, the school is a<\/p>\n
minority school and therefore the appointment of the 5th respondent<\/p>\n
as Headmaster of the school by the manager in exercise of the rights<\/p>\n
of a minority institution is perfectly valid and sustainable.<\/p>\n
      4.   The petitioners would strongly dispute the claims of the<\/p>\n
manager. They would contend that after examining the evidence<\/p>\n
adduced by both sides, the Government had, in Ext. P9, come to the<\/p>\n
conclusion that the school was established by a non-muslim and it was<\/p>\n
purchased by the Muslim Vidyabhyasa Sangham, the present<\/p>\n
management of the school in 1985 from the founder manager. It was<\/p>\n
because of that specific finding, Ext. P9 was quashed and the matter<\/p>\n
was remanded for fresh consideration, by this Court as per Ext. P11<\/p>\n
judgment.     According to them, in Ext. P14, there is no contrary<\/p>\n
finding, without which the Government could not have found that the<\/p>\n
institution is a minority institution. They submit that there is enough<\/p>\n
evidence on record to show tat the school was started by a non-<\/p>\n
Muslim viz. V.M. Krishnan Master, who was the founder manager and<\/p>\n
was succeeded by his wife Mathu, who was again replaced by<\/p>\n
Krishnan Master. They would also rely on the very same documents<\/p>\n
produced by the manager, in support of their contention. They would<\/p>\n
also rely on Ext. P10 chapter on the history of the school in a<\/p>\n
W.P.C. Nos.9662 & 11407\/08          -: 6 :-<\/span><\/p>\n
publication titled “Thodannur Upa Jilla Vidyalaya Charitham”<\/p>\n
(Educational History of the Thodannur Sub District), by a team of<\/p>\n
authors, which, according to them, would prove that the school was<\/p>\n
started by Krishnan Master.\n<\/p>\n
      5. The veracity of the facts stated in the publication relied upon<\/p>\n
by the petitioners is disputed by the manager on the ground that the<\/p>\n
same is prepared by Sri. Bhaskaran, one of the petitioners and they<\/p>\n
have produced copy of the manuscript of the Chapter in the<\/p>\n
publication relating to the school as Ext.             R6(f), which is in his<\/p>\n
handwriting.\n<\/p>\n
      6.   I have considered the rival contentions based on the<\/p>\n
materials produced by both sides as also those produced by the DEO<\/p>\n
in his counter affidavit dated 25-7-2009, filed as directed by me by<\/p>\n
order dated 13-7-2009.\n<\/p>\n
      7. Before going into the rival contentions, I may refer to the law<\/p>\n
on the subject briefly.     The word “minority schools” is defined in<\/p>\n
Section 2(5) of the Kerala Education Act thus:\n<\/p>\n<\/p>\n
     “2.    Definitions:   In this Act, unless the context otherwise
\n     requires,-<\/p>\n
                  xx                   xx                  xx\n\n                  xx                   xx                  xx\n\n<\/pre>\n
     (5) “minority schools” means schools of their choice established
\n     and administered, or administered, by such minorities as have the
\n     right to do so under clause (1) of Article 30 of the Constitution;\n<\/p><\/blockquote>\n
                  xx                   xx                  xx\n\n                  xx                   xx                  xx\"\n\n\n\n<\/pre>\n
A learned Single Judge of this Court had occasion to consider the<\/p>\n
scope of this definition in Rev. K.C. Seth v. State of Kerala, 1991<\/p>\n
W.P.C. Nos.9662 & 11407\/08              -: 7 :-<\/span><\/p>\n
(2) KLT 662. In that decision, it was held thus:\n<\/p><\/blockquote>\n
             “The definition of minority school in the Act is wider than
\n      what is contemplated in Article 30(1) of the Constitution. Article
\n      30(1) confers on all minorities, whether based on religion or
\n      language, the right to establish and administer educational
\n      institutions   of    their  choice.   The   words    ‘established   and
\n      administered’ will have to be read conjunctively. This is made
\n      clear in the decision of the Supreme Court reported in Azeez
\n      Basha v. Union of India (AIR<\/a> 1968 S.C. 662) in which the Supreme
\n      Court observed:\n<\/p><\/blockquote>\n
              ‘ . . . . . the Article in our opinion clearly shows that the
\n            minority will have the right to administer educational
\n            institutions of their choice provided they have established
\n            them, but not otherwise. The Article cannot be read to mean
\n            that even if the educational institution has been established by
\n            somebody else, any religious minority would have the right to
\n            administer it because, for some reason or other, it might have
\n            been administering it before the Constitution came into force.
\n            The words “establish and administer” in the Article must be
\n            read conjunctively and so read it gives the right to the minority
\n            to administer an educational institution provided it has been
\n            established by it.”\n<\/p><\/blockquote>\n
             To the same effect is the decision reported in State of
\n      Kerala v. Mother Provincial (AIR<\/a> 1970 S.C 2079) and S.P. Mittal v.
\n      Union of India (AIR<\/a> 1983 S.C1).           In the latter decision, the
\n      Supreme Court held that:\n<\/p><\/blockquote>\n
                     “In order to claim the benefit of Art. 30(1) the
\n             community must show: (a) that it is a religious or linguistic
\n             minority, (b)     that the institution was established by it.
\n             Without satisfying these two conditions, it cannot claim the
\n             guaranteed rights to administer it”.\n<\/p><\/blockquote>\n
             But the definition in S.2(5) of the Kerala Education Act
\n      provides that the schools administered by a minority also can claim
\n      the benefit of Article 30(1) of the Constitution. An almost similar
\n      clause came up for consideration before a Division Bench of the
\n      Madras High Court in the decision reported in Association of
\n      University Teachers v. State of Tamil Nadu, 1991 II LLJ 31, where
\n      the definition was as under:\n<\/p><\/blockquote>\n
                     “‘minority college’ means     a private college of its
\n             choice established and administered, or administered, by any
\n             such minority whether based on religion or language as has
\n             the right     to do so under clause (1) of Art. 30 of the<\/p>\n
W.P.C. Nos.9662 & 11407\/08            -: 8 :-<\/span><\/p>\n
             Constitution”.\n<\/p><\/blockquote>\n
             Considering the validity of such definition in the background
\n      of Article 30(1) of the Constitution, the Madras High Court
\n      observed:\n<\/p><\/blockquote>\n
                   xx                    xx                  xx<\/p>\n
After referring to the Madras High Court decision and Article 30 of<\/p>\n
the Constitution of India, the learned Judge further held thus:\n<\/p><\/blockquote>\n
             “Minorities may be based on religion or language but the
\n      rights is to establish and then to administer.      The right is not
\n      available to institution not established by the minority but
\n      administered by the minority. Article 30(IA) also emphasis this
\n      requirement. Hence, if Article 30 of the Constitution is the ground
\n      norm and if that is to be given effect to the words “or
\n      administered” in S.2(5) of the Kerala Education Act will have to be
\n      ignored. In a writ petition filed by the management of the minority
\n      school in which there will not be any prayer to declare S.2(5) of
\n      the Kerala Education Act unconstitutional to the extent it declares
\n      institutions administered by the minority also minority institution,
\n      I would not be justified in striking down the section. Therefore, I
\n      am of the opinion that S.2(5) of the Kerala Education Act has to be
\n      read down in conformity with the requirements of Article 30 of the
\n      Constitution and, so read, the words “or administered” occurring
\n      in the sub section will have to be ignored. Hence, the 2nd prayer to
\n      declare that the educational institutions mentioned in Ext.P1 are
\n      minority schools cannot be granted in this writ petition. Such a
\n      declaration can be given only if the institution is found to be
\n      established by a religious or linguistic minority and administered
\n      by them. With these observations, I feel, O.P.7020 of 1989 can be
\n      closed.”\n<\/p><\/blockquote>\n
The aforesaid decision was affirmed by a Division Bench of this Court<\/p>\n
in Rev. K.C. Seth v. State of Kerala, [1992 (1) KLT 754].<\/p><\/blockquote>\n
      8. After referring to those decisions, another Division Bench of<\/p>\n
this Court has in Manager, St. Thomas U.P. School v.<\/p>\n
Commissioner and Secretary<\/a> to Government, 1999 (3) KLT 281,<\/p>\n
held thus:\n<\/p>\n
W.P.C. Nos.9662 & 11407\/08            -: 9 :-<\/span><\/p>\n
             “5. In the light of the aforesaid decisions, there is no room
\n      for any controversy that the words “established and administered”
\n      in Art. 30 of the Constitution of India must be read conjunctively.
\n      As observed by the learned Single Judge, the mere fact that the
\n      educational institution is now being administered by a minority
\n      community is not sufficient to claim protection under Art. 30(1) of
\n      the Constitution of India.       It must also be proved that the
\n      institution was established by a minority community. The basic
\n      fact to be proved is that initially the institution was established by
\n      a minority community. Establishment in this context means the
\n      bringing into being of an institution. Therefore, it is quite clear
\n      that the minority community must have some role to play not only
\n      in the subsequent administration of an institution, but also in the
\n      initial establishment of the institution.         Here the minority
\n      institution is nowhere in the picture in the process of establishing
\n      the institution. A subsequent entry by the minority community into
\n      the area will not help them to claim protection under Art. 30(1) of
\n      the Constitution of India. In the aforesaid view, we are of the
\n      opinion that the learned Single judge was right in allowing the
\n      original petition, quashing Ext. P4 and           declaring that the
\n      educational institution managed by the first appellant is not a
\n      minority institution entitled to protection under Art. 30(1) of the
\n      Constitution of India. This appeal accordingly fails and we dismiss
\n      the same.”\n<\/p><\/blockquote>\n
                                                  (underlining supplied)<\/p>\n
But, this decision was reversed by the Supreme Court on the question<\/p>\n
as to whether simply because the institution was started by an<\/p>\n
individual belonging to the minority community, it can be denied<\/p>\n
minority status, in St. Thomas U.P.S                    v. Commissioner &<\/p>\n
Secretary<\/a> to Government, 2002 (1) KLT 655 (SC).                     But, in that<\/p>\n
decision, the Supreme Court also affirmed the legal position that for<\/p>\n
claiming minority status, the institution should have been one<\/p>\n
established by a minority. The Supreme Court held thus in paragraph<\/p>\n
5 thereof:\n<\/p><\/blockquote>\n
             “5. The question before us is whether the High Court was
\n      correct in taking the decision it did.         Under Art. 30(1), all
\n      minorities whether based on religion or language, have been<\/p>\n
W.P.C. Nos.9662 & 11407\/08            -: 10 :-<\/span><\/p>\n
      guaranteed the right to establish and administer educational
\n      institutions of their choice. It is not in dispute that Christians form
\n      a minority in this country. The right of minorities under Art. 30(1)
\n      to establish and administer educational institutions has been
\n      judicially construed as defining minority institutions.        What is
\n      expressed in terms of a right under Art. 30(1) in fact describes the
\n      institution in respect of which the protection of Art. 30(1) can be
\n      claimed. It has, therefore, been held that unless the educational
\n      institution has been established by a minority, it cannot claim the
\n      right to administer it under Art. 30(1) Azeer Basha v. Union [1968
\n      (1) SCR 833]. . . . . .”<\/p><\/blockquote>\n
                                                  (underlining supplied)<\/p>\n<\/blockquote>\n
      9. Therefore, the law on the point is well settled to the effect<\/p>\n
that for claiming minority status,           an educational institution must<\/p>\n
satisfy the twin tests of whether the same is (1) one established by a<\/p>\n
minority community and (2) one administered by it.                    I shall now<\/p>\n
examine whether          the Mayyannur Central Mappila U.P. School<\/p>\n
satisfies those twin tests.<\/p><\/blockquote>\n
      10. In support of their contentions, the petitioners would rely<\/p>\n
on a publication by team of authors by name “Thodannur Upajilla<\/p>\n
Vidyalaya Charitham” (Educational History of Thodannur                        Sub<\/p>\n
District), which contains a chapter on the history of the Mayyannur<\/p>\n
Central Mappila U.P. School, photocopies of the relevant pages of<\/p>\n
which are produced as Ext. P10 in W.P(C) No. 9662\/2008.                       The<\/p>\n
introductory chapter of the book details the mode of preparation of<\/p>\n
the history as complied from various sources such as references,<\/p>\n
interviews,      collecting        documents\/official          documents\/school<\/p>\n
documents\/Panchayat          Development        document,      visit   books   of<\/p>\n
Educational Officers, statistics, minutes of P.T.As and other<\/p>\n
associations, old       photographs         and       correspondence,         old<\/p>\n
pictures\/publications\/intimations etc., unofficial discussions and<\/p>\n
debates.     As per this publication,            in 1940, the independence<\/p>\n
W.P.C. Nos.9662 & 11407\/08      -: 11 :-<\/span><\/p>\n
movement had its waves in Mayyannur also. Some socialist minded<\/p>\n
youths joined together and discussed about starting a school. One<\/p>\n
Mr. Krishnan Master gave leadership for the same. Varayalil Ammed,<\/p>\n
Anchanvida Kelappan, Java Ammad Haji, Ottapurakkal Pookkan,<\/p>\n
Kolakkandi Kannan and Chamakkandi Unniya Dayyinar supported<\/p>\n
him. The school was started on 30th August, 1943. The school was<\/p>\n
named Mayyannur Girls Elementary School. The first manager was<\/p>\n
V.M. Krishnan Master. When, in 1946, the Muslim Range inspector<\/p>\n
inspected the school, in the visit book of the school, it was written<\/p>\n
thus: “This school should be so conducted as to make the muslim girls<\/p>\n
of the village able to read and write.” For the first thirteen years only<\/p>\n
muslim girls were admitted. The first Hindu girl was V. M. Sobhana<\/p>\n
(daughter of the manager). When V.M. Krishnan Master became<\/p>\n
Headmaster in 1953, management was transferred to his wife Mathu<\/p>\n
teacher.    From the beginning of the school, at the same place<\/p>\n
Madrassa teaching was also conducted, for which a              Madrassa<\/p>\n
teacher was given salary by the teachers of the school, which<\/p>\n
continued till 1973. On 31-12-1963, classes 6 and 7 were also started.<\/p>\n
From then onwards, the name of the school was changed to<\/p>\n
Mayyannur Central Mappila U.P. School. From 1977 onwards, the<\/p>\n
children of Thanvirul Muslim Orphanage used to be admitted to class<\/p>\n
five in the school.     In 1978, the Villiappilly Muslim Vidyabhyasa<\/p>\n
Sanghom purchased the school from Mathu and then onwards the<\/p>\n
school is under the management of the Sanghom.\n<\/p>\n
      11.   The veracity of this history is strongly disputed by the<\/p>\n
manager. According to him, the particular chapter in the publication<\/p>\n
containing the history of the school was prepared by Sri. Bhaskaran,<\/p>\n
one of the petitioners in these writ petitions and therefore much<\/p>\n
credence cannot be given to the same. In support of this contention,<\/p>\n
W.P.C. Nos.9662 & 11407\/08           -: 12 :-<\/span><\/p>\n
the manager has produced a copy of a manuscript allegedly in the<\/p>\n
handwriting of Sri. Bhaskaran. Although in the original of the<\/p>\n
publication (a copy of which was made available to the court by the<\/p>\n
petitioners), Sri. Bhaskaran’s name is not mentioned anywhere, the<\/p>\n
counsel for Sri. Bhaskaran does not dispute that Ext. R6(f) is in the<\/p>\n
handwriting of Sri. Bhaskaran.\n<\/p>\n
      12. In view of this dispute, I issued the following direction to<\/p>\n
the DEO, on 13-7-3009:\n<\/p>\n<\/p>\n
             “The office of the District Educational Officer shall trace out
\n      the old records of the 6th respondent school and file a counter
\n      affidavit giving the history of the school such as its initial name,
\n      initial manager etc.     which are relevant for the purpose of
\n      deciding the issue involved in this writ petition. The District
\n      Educational officer shall also ascertain the correctness of Ext.
\n      P10 history of the school prepared by a team of authors. It shall
\n      be done within two weeks.”\n<\/p><\/blockquote>\n
Pursuant to that order, the DEO has filed a counter affidavit dated 25-<\/p>\n
7-2007 stating thus:\n<\/p>\n<\/p>\n
             “7. It is submitted that the above W.P. came up for hearing
\n      on 13.07.2009, this Hon’ble Court directed me to file an affidavit
\n      sating the history of the school such as initial name, initial
\n      manager etc.       after producing the old records of the 6th
\n      respondent of the school.\n<\/p><\/blockquote>\n
             8. It is submitted that the initial name of the school is
\n      Mayyannur Moppila Girls School. It was established in the year
\n      1943 ie. on 30.08.1943. During that period the school is under
\n      the control of Divisional Inspector, Kurumbaranad Girls range
\n      under the District Educational Officer, North Malabar who is
\n      under the Government of Madras. An inspection was conducted
\n      on 3.11.1943 by Senior Inspector. A visit book is being kept in the
\n      school during those days. From the visit book it may be seen that
\n      Senior Inspector had inspected the school and issued necessary
\n      directions in the improvements of the school. But on going during
\n      the visit book it cannot be seen that who is the Manager. A true
\n      copy of he Page 3 to 13 visit book pertaining to Mayyannur
\n      Central Moppila Girls High School is produced herewith and<\/p>\n
W.P.C. Nos.9662 & 11407\/08           -: 13 :-<\/span><\/p>\n
      marked as Exhibi R3(a).\n<\/p><\/blockquote>\n
             9.  It is submitted that on going through the Teachers
\n      Service Register available in the office of the Assistant
\n      Educational Officer, Thodannur,         it can be seen that one
\n      T.H.Poikam has been appointed on 1.07.1944 to 31.03.1945 as
\n      temporary Teacher. This appointment has been made by one V.M.
\n      Krishnan the Manager of Mayyannur Moppila Girls U.P. School.
\n      This is the first document which is available in the A.E.O. Office,
\n      Thodannur showing the name of the Manager. A true copy of the
\n      Teachers Service Register pertaining to one Pokkan is produced
\n      herewith and marked as Ext.R3(b).\n<\/p><\/blockquote>\n
             10. On going through the Service Book of the Manager
\n      stated to be in Exhibit R2(b), it can be seen that he was working
\n      as Teacher in the School from 6.04.1947.        A true copy of the
\n      Service Register of Krishnan is produced herewith and marked as
\n      Exhibit R3(c). There are no records available in the office of the
\n      A.E.O. Thodannur or D.E.O. Vadakara, when the name of the
\n      school has been changed from Mayyannur Moppila Girls School to
\n      Mayyannur Central Moppila U.P. School. It is also submitted that
\n      Ext.P10 is a history purporting to be of Mayyannur Central
\n      Moppila U.P. School. This respondent is not in position of state in
\n      the genuinity of Ext.P10 for the reason that the petitioner himself
\n      was the Editor.\n<\/p><\/blockquote>\n
             11.    It is further submitted that under the Assistant
\n      Educational Officer, Thodannur, there was school by name
\n      Mayyanur Moppila L.P.School one Sri. P.A. Ammed was the
\n      Manager of that school. That school was closed as per G.O.484\/65
\n      dated 1.09.65, due to the reason that it is in loss. A true copy of
\n      the service book of one Sankaran who was appointed by P.Ammed
\n      who was the Manager is produced and marked as Exhibit R3(d).\n<\/p><\/blockquote>\n
             12. It is pertinent to note that Ammed was not the Manager
\n      of Mayyannu Central Moppila U.P.School, but he was the Manager
\n      of Mayyannur Mopila L.P. School. Hence it is humbly prayed that
\n      this Hon’ble Court may be pleased to accept this affidavit and
\n      dismiss the above Writ Petition since it is devoid of any merit.”\n<\/p><\/blockquote>\n
                                                (underlining supplied)<\/p>\n<\/blockquote>\n
      13. This is in tune with the findings of the Under Secretary,<\/p>\n
who prepared Ext. P8 hearing note, during the first hearing on 25-5-\n<\/p><\/blockquote>\n
2005, in which it is stated thus:\n<\/p>\n
W.P.C. Nos.9662 & 11407\/08         -: 14 :-<\/span><\/p>\n
             “33. The history of the school reveals that the school was
\n      not established by a minority community.           The school was
\n      established by one Sri. Krish Master and later in the year 1985,
\n      the school was purchased by Muslim Vidhyabhasa Sangham. The
\n      aim of the school was not the development of the education of the
\n      Muslims alone in the locality. The interest was to benefit the
\n      public at large. The fact that the educational institution is one
\n      being administered by minority community is not sufficient to
\n      claim protection under Art. 30(1) of the Constitution of India.\n<\/p><\/blockquote>\n
             34. Under these circumstances, Mayyanur Central Mopla
\n      Upper Primary School, Mayyanur cannot be granted minority
\n      status under Art. 30(1) of the Constitution of India and the
\n      request of the manager to declare the school as minority school is
\n      rejected. The direction contained in the judgment dated. 17\/3\/05
\n      in W.A.No. 587\/05 may be complied with accordingly.”\n<\/p><\/blockquote>\n
                                               (underlining supplied)<\/p>\n
In fact, Ext. P9 order of the Government, pursuant to the same,<\/p>\n
reflects the same in the following sentences:\n<\/p><\/blockquote>\n
             “5.   The relevant records and argument notes were
\n      examined. The dispute in the instant case is whether the school
\n      was established and administered for the benefit of a minority
\n      community. It is seen that the school was established in 1943 and
\n      the area is predominantly of Muslim people. It is true that it was
\n      established by a non-Muslim and it was purchased by Muslim
\n      Vidyabhasa Sangham, the present management of the school, in
\n      1985 from the founder manager. . . . . .”<\/p><\/blockquote>\n
                                               (underlining supplied)<\/p>\n
But, after finding that the school was established by a non-muslim, the<\/p>\n
Government chose to hold that the school is a minority institution. It<\/p>\n
is exactly for that reason, this Court has set aside Ext. P9 by Ext. P11<\/p>\n
judgment in W.P(C) Nos. 22337\/2005 and 22857\/2005. In para 3<\/p>\n
onwards of that judgment it was held thus:\n<\/p><\/blockquote>\n
             ” 3. In the impugned order it is inter-alia stated as follows:\n<\/p><\/blockquote>\n
                   “The dispute in the instant case is whether the<\/p>\n
W.P.C. Nos.9662 & 11407\/08            -: 15 :-<\/span><\/p>\n
      school was established and administered for the benefit of a
\n      minority community. It is seen that the school was established in
\n      1943 and the area is predominantly of Muslim people. (It is true
\n      that it is established by a non-Muslim and it was purchased by
\n      Muslim Vidyabyasa Sangham, the present management of the
\n      school, in 1985 from the founder Manager)”\n<\/p><\/blockquote>\n
             4. No doubt, in para 6 it is stated that the school was
\n      established at the beginning itself for the benefits of the minority
\n      and now it is run by a minority community for the same purpose.
\n      Various other facts are mentioned.          As per Article 30, all
\n      minorities whether based on religion or language shall have the
\n      right to establish and administer educational institution of their
\n      choice. It is open even to a single individual to found a minority
\n      institution for the benefit of the minority. But here, the finding is
\n      that it is established by a non-muslim and it is purchased by
\n      Muslim Vidyabyasa Sangam.\n<\/p><\/blockquote>\n
             5. Learned counsel appearing for the manager Sri. K.R.B.
\n      Kaimal would contend that there is ample materials produced to
\n      show that the school was in fact established by the muslims.\n<\/p><\/blockquote>\n
             In such circumstances, I feel that the matter will have to be
\n      re-considered. No doubt, learned counsel for the petitioners Sri.
\n      M.Vijayakumar has raised various contentions. However, I find
\n      that the order cannot be sustained in the face of the finding that
\n      the school was established by a non-muslim and yet Government
\n      proceeds to confer minority status. Therefore, Ext.P2 in W.P(C)
\n      No. 22857\/05 and Ext.P10 in W.P(C) No. 22337\/05 shall stand
\n      quashed.     First respondent will re-consider the matter with
\n      opportunity of hearing o the petitioner in both the cases, the
\n      manager and the 5th respondent. Fresh decision in accordance
\n      with law will be taken by the first respondent within a period of
\n      two months from the date of receipt of a copy of this judgment. It
\n      is open to the petitioners to raise all contentions available to them
\n      under law. The position as on today will continue till a decision is
\n      taken.”<\/p><\/blockquote>\n
                                               (underlining supplied)<\/p>\n
It is pursuant to Ext. P11 judgment, Ext. P14 order was passed by<\/p>\n
the Government. Strangely, Ext. P14 does not give any reasoning as<\/p>\n
to how the Government came to the conclusion that the school is a<\/p>\n
minority institution. In that order, after stating the rival contentions,<\/p>\n
the Government without discussing the contentions or the evidence,<\/p>\n
W.P.C. Nos.9662 & 11407\/08          -: 16 :-<\/span><\/p>\n
merely stated thus:\n<\/p><\/blockquote>\n
             “6.  The undersigned examined the issue in detail and
\n      arrived at the following conclusion.\n<\/p><\/blockquote>\n
             7.   Based   on the argument posed and the documents
\n      produced by the rival parties, the contentions of the 6th respondent
\n      (ie Manager, Mayannour Central Mopila UP School) which is
\n      supported by solid evidences to prove that the institution is a
\n      minority one has to be agreed to.\n<\/p><\/blockquote>\n
             8. In the above circumstances, Government are of the view
\n      that the school is eligible for minority status and are pleased to
\n      accord minority status to Mayyannur Central Mopila UP School.
\n      The direction of the Hon’ble High Court in the combined judgment
\n      is thus complied with.”<\/p><\/blockquote>\n<\/blockquote>\n
      14. I find that the findings of the DEO in his counter affidavit is<\/p>\n
supported by the documents produced by him as also those filed by<\/p>\n
the manager himself. In fact, the same also supports the history of<\/p>\n
the school as per the publication produced by Sri. O. Balan in his writ<\/p>\n
petition as Ext. P10, the original of which was produced before the<\/p>\n
Court for perusal by the counsel for the petitioner. The manager<\/p>\n
claimed that one P. Ammad was the initial manager of the school.\n<\/p><\/blockquote>\n
But, from Ext. R6(d), I find that Sri. P. Ammad was the manager of<\/p>\n
Mayyannur Aided Mapila School, in 1944 and 1947. On the other<\/p>\n
hand, the same document shows that from 1949 to 1957, V.M.<\/p>\n
Krishnan was the manager of the Mayyannur Mopla Girls School and<\/p>\n
in 1958, Mathu was the manager. Again Ext. R6(c) shows that from<\/p>\n
1947 to 1953, V.M. Krishnan was the manager. From Ext. R3(b) ,<\/p>\n
which is also a teacher’s service register as in the case of Exts. R3(d)<\/p>\n
and R6(e), would go to show that in 1944 also V.M. Krishnan Master<\/p>\n
was the manager of the school.\n<\/p>\n
      15. Ext. R6(i) is the sale deed executed by Mathu in favour of<\/p>\n
Villiappully Muslim Vidyabhyasa Sangham, by which the property<\/p>\n
W.P.C. Nos.9662 & 11407\/08      -: 17 :-<\/span><\/p>\n
comprised of the school was transferred in 1985.        That document<\/p>\n
recites that    Mathu was running the Mayyannur Central Mappila<\/p>\n
School as its manager and correspondent, which was sold to the<\/p>\n
Sangham. It again states that one Ammad sold his rights over the<\/p>\n
property in favour of Mathu by sale deed no. 18 of 1962. That Ammad<\/p>\n
got rights over the property by Ext. R6(j) document no. 56 of 1961<\/p>\n
from Madathil Ammad Haji. Although Exts.R6(i) and R6(j) documents<\/p>\n
have been produced by the manager to prove that Ammad was the<\/p>\n
owner of the property, those documents actually go to show that till<\/p>\n
1985 Mathu was the manager of the school. Although an attempt was<\/p>\n
made by the manager to show that Ammad was the manager of the<\/p>\n
school, in view of the counter affidavit of the DEO, it is clear that he<\/p>\n
was the manager of the Mayyannur Mopila L.P. School which was<\/p>\n
closed as per G.O.484\/65 dated 1-9-1965. From Ext. R6(d) Teacher’s<\/p>\n
Service Register of one Moidu also, it is seen that Ammad was the<\/p>\n
manager of Mayyannur Aided Mapila School. As such, the manager<\/p>\n
could not    succeed in his attempt to show that Ammad was the<\/p>\n
founder manager of the school and not V.M. Krishnan Master.<\/p>\n
Although there is no clinching evidence to show that V.M. Krishnan<\/p>\n
Master was the founder manager, from the evidence available, it is<\/p>\n
the most probable conclusion, in so far as there is evidence to show<\/p>\n
that at least in 1944 he was the manager and he,         later his wife<\/p>\n
Mathu and again he were the managers of the school, successively. It<\/p>\n
is all the more so, since the manager could not produce any evidence<\/p>\n
to show that anybody else was the manager of the school in 1943.<\/p>\n
Further, the case set up by the manager that Ammad was the founder<\/p>\n
manager is clearly disproved by the counter affidavit of the DEO and<\/p>\n
the documents available.    In fact, the findings of the Government in<\/p>\n
Ext. P9 was also that the school was established by a non-muslim, and<\/p>\n
W.P.C. Nos.9662 & 11407\/08          -: 18 :-<\/span><\/p>\n
the Muslim Vidyabhyasa Sangham purchased the school from the<\/p>\n
founder manager in the year 1985.             As  such, it can be safely<\/p>\n
concluded that the school was established by a Hindu and not by a<\/p>\n
minority community or any individual of a minority community.<\/p>\n
Therefore, the first of the twin requirements for conferring minority<\/p>\n
status on this particular school is clearly absent in this case, without<\/p>\n
which the Government could not have validly held that the institution<\/p>\n
is a minority institution as done in Ext. P14. Since for being eligible<\/p>\n
for minority status an educational institution should satisfy both tests,<\/p>\n
even if the 2nd test is satisfied, the school cannot be conferred with the<\/p>\n
status of a minority educational institution.        Therefore, it is not<\/p>\n
necessary to examine whether the 2nd test is satisfied. Accordingly,<\/p>\n
Ext. P14 order of the Government is quashed and it is declared that<\/p>\n
the Mayyannur Central Mappila U.P. School, of which the 6th<\/p>\n
respondent is the manager is not a minority institution. Consequently,<\/p>\n
the 6th respondent is not entitled to appoint a teacher of his choice as<\/p>\n
Headmaster of the school overlooking seniority among the eligible<\/p>\n
teachers.\n<\/p>\n
      16.    The next question is as to         the reliefs to which the<\/p>\n
petitioners are entitled. As far as Sri. O. Balan (the petitioner in W.P<\/p>\n
(C) No. 9662\/2008) is concerned, there is no difficulty. Admittedly,<\/p>\n
when the vacancy of Headmaster arose in the school on 1-6-2004, he<\/p>\n
was the senior-most teacher in the school. Although the manager<\/p>\n
would contend that Smt. Vilasini, a graduate teacher with more than 5<\/p>\n
years’ service and half of the service of Sri. Balan was available, who<\/p>\n
is entitled to be promoted in preference to Sri. Balan, as per Rule 45<\/p>\n
of Chapter XIVA of the Kerala Education Rules, the manager has not<\/p>\n
chosen to produce any material in support of the said contention.<\/p>\n
There is no evidence to show that Amt. Vilasini has raised such a<\/p>\n
W.P.C. Nos.9662 & 11407\/08        -: 19 :-<\/span><\/p>\n
claim also. A Division Bench of this Court had in Ext. P6 judgment<\/p>\n
held that if the Government find that the school is not a minority<\/p>\n
institution, Sri. O. Balan would be entitled to get all service benefits<\/p>\n
including pay and allowances from 1-6-2004 onwards, which is to be<\/p>\n
borne by the institution.     That     judgment has become final and<\/p>\n
therefore Sri. Balan is entitled to the fruits of that judgment, in view<\/p>\n
of my finding that the school is not a minority institution.<\/p>\n
      17.    In respect of Sri. Bhaskaran, the manager takes a<\/p>\n
contention that since, as evidenced by Exts.R6(b) series of documents,<\/p>\n
he was imposed with the punishment of barring of two increments for<\/p>\n
misconducts involving financial irregularity of a very serious nature,<\/p>\n
he is not fit for being promoted as Headmaster. He relies on Ext. R6<\/p>\n
(c)   judgment for the proposition that although promotion as<\/p>\n
Headmaster is by seniority, the manager can take into account the<\/p>\n
punishment to decide whether Sri. Bhaskaran is suitable for<\/p>\n
promotion. But, it is admitted that Ext. R6(c) judgment is pending in<\/p>\n
appeal before a Division Bench of this Court . I do not propose to<\/p>\n
enter a finding regarding the same, since it is for the manager to<\/p>\n
take a decision in that regard in the first instance.<\/p>\n
      18. In view of my above findings, the writ petitions are disposed<\/p>\n
of on the following terms:\n<\/p>\n<\/p>\n
            (a) Ext. P14 order in W.P(C) No. 9662\/2008, which is the<\/p>\n
      same as Ext. P5 in W.P(C) No. 11407\/2008 is hereby quashed.\n<\/p><\/blockquote>\n
             (b) It is declared that the Mayyannur Central Mappila<\/p>\n
      U.P. School is not a minority institution,          that therefore<\/p>\n
      appointment of Headmaster of the school shall only be by<\/p>\n
      promotion in accordance with Rules 43 and 45 of Chapter XIVA<\/p>\n
W.P.C. Nos.9662 & 11407\/08     -: 20 :-<\/span><\/p>\n
      of the Kerala Education Rules and that the manager cannot<\/p>\n
      appoint a teacher of his choice as Headmaster of the school in<\/p>\n
      exercise of minority rights overlooking seniority of eligible<\/p>\n
      teachers.\n<\/p><\/blockquote>\n
            (c) The 6th respondent manager in W.P(C) No. 9662\/2008<\/p>\n
     shall, within two weeks from the date of receipt of a copy of this<\/p>\n
     judgment,      forward an appointing order promoting          Sri.<\/p>\n
     O. Balan, the petitioner in that writ petition, as Headmaster of<\/p>\n
     the school, with effect from 1-6-2004, to the 4th respondent<\/p>\n
     Assistant Educational Officer.    The AEO shall approve     such<\/p>\n
     appointment , if the same is otherwise in order and take steps to<\/p>\n
     disburse the arrears of monetary benefits arising therefrom to<\/p>\n
     Sri. O. Balan, within one month from the date of receipt of the<\/p>\n
     appointment order. The monetary benefits so paid to Sri. O.\n<\/p><\/blockquote>\n
     Balan shall be recovered from the 6th respondent-manager of the<\/p>\n
     school as directed in Ext. P6 judgment of the Division Bench.\n<\/p><\/blockquote>\n
     The retirement benefits of Sri. O. Balan shall also be revised<\/p>\n
     consequentially and arrears disbursed to him within another<\/p>\n
     month therefrom.\n<\/p><\/blockquote>\n
            (d) The manager shall pass orders regarding appointment<\/p>\n
     of Headmaster of the school for the period after the date of<\/p>\n
     retirement of Sri. O. Balan, in accordance with law considering<\/p>\n
     the claim of Sri. Bhaskaran also and forward the same to the<\/p>\n
     AEO for approval as expeditiously as       possible, at any rate,<\/p>\n
     within one month from the date of receipt of a copy of this<\/p>\n
     judgment. The AEO shall pass orders regarding approval of such<\/p>\n
     appointment within one month from the date of receipt of the<\/p>\n
W.P.C. Nos.9662 & 11407\/08     -: 21 :-<\/span><\/p>\n
     same. If Sri. Bhaskaran is found entitled for promotion, the fact<\/p>\n
     that he has also retired from service shall not stand in the way<\/p>\n
     of his retrospective promotion for the purpose of salary and<\/p>\n
     other service benefits including pension on the basis of the<\/p>\n
     salary as applicable to Headmaster.\n<\/p><\/blockquote>\n
                                       S. Siri Jagan, Judge.\n<\/p><\/blockquote>\n
Tds\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court O.Balan vs State Of Kerala on 28 August, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 9662 of 2008(A) 1. O.BALAN, ASSISTANT TEACHER (RETIRED), … Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY … Respondent 2. DIRECTOR OF PUBLIC INSTRUCTIONS, 3. DISTRICT EDUCATIONAL OFFICER, VADAKARA. 4. ASSISTANT EDUCATIONAL OFFICER, THODANNUR […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-60496","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nO.Balan vs State Of Kerala on 28 August, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/o-balan-vs-state-of-kerala-on-28-august-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"O.Balan vs State Of Kerala on 28 August, 2009 - 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